Smith v. Mantle

United States District Court, W.D. Oklahoma

February 16, 2018

FRANKLIN SMITH, Plaintiff,v.MANTLE, et al., Defendants.

ORDER

JOE
HEATON CHIEF U.S. DISTRICT JUDGE.

Plaintiff
Franklin Smith, a state prisoner appearing pro se
and informa pauperis, filed this § 1983 action
against multiple defendants alleging violations of his
constitutional rights. Consistent with 28 U.S.C. §
636(b)(1)(B)-(C), the matter was referred to Magistrate Judge
Shon T. Erwin for initial proceedings. After numerous
rulings, defendants Captain David Baisden, an Oklahoma County
deputy sheriff, and Stacy Bowein, an Oklahoma City police
officer, are the only remaining defendants in the action.
Plaintiff claims defendant Bowein used excessive force when
arresting him and defendant Baisden failed to intervene to
prevent the exercise of excessive force. Defendant Bowein
filed a motion for summary judgment based on qualified
immunity, which the Magistrate Judge recommends be
denied.[1] Defendant Bowein has objected to the
Report and Recommendation
(“Report”).[2]

The
facts are simple. Defendant Bowein arrested plaintiff on
April 29, 2015, for public drunkenness. Plaintiff alleges
that during the arrest Office Bowein (1) repeatedly slammed
him against a police vehicle, injuring his back, (2) hit his
head on the door frame of the vehicle and (3) cut off the
circulation in his wrists, first, by using his backpack
straps as handcuffs, and then, by handcuffing him too
tightly. Doc. #1, p. 3.[3] Defendant Bowein disputes using any
force to effect the arrest beyond the minimal force
necessarily involved in handcuffing.

Plaintiff's
excessive force claim is governed by the Fourth
Amendment's objective reasonableness standard. Graham
v. Connor, 490 U.S. 386, 388 (1989); see Mecham v.
Frazier, 500 F.3d 1200, 1203 (10th Cir. 2007). The
Supreme Court laid out the test for reasonableness in
Graham, which requires courts to balance “the
nature and quality of the intrusion on the individual's
Fourth Amendment interests against the countervailing
governmental interests at stake.” Id. at 396
(internal quotation marks omitted). The Court recognized in
Graham that “the right to make an arrest or
investigatory stop necessarily carries with it the right to
use some degree of physical coercion or threat thereof to
effect it, ” id., and set out factors to
consider when evaluating the reasonableness of the arresting
officer's actions. These include: “the severity of
the crime at issue, whether the suspect poses an immediate
threat to the safety of the officers or others, and whether
the suspect is actively resisting arrest or attempting to
evade arrest by flight.” Id.

The
magistrate judge concluded that material questions of facts
exist which preclude summary judgment in defendant
Bowein's favor. He was not persuaded by defendant's
argument that “the medical records and photographs
clearly refute Plaintiff's testimony that [she
(defendant)] used excessive force.” Doc. #78, p. 3. He
therefore rejected defendant's assertion that this case
fits within the Supreme Court's holding in Scott v.
Harris, 550 U.S. 372, 380 (2007), that “[w]hen
opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable
jury could believe it, a court should not adopt that version
of the facts for purposes of ruling on a motion for summary
judgment.” Id. at 380. Rather, he concluded
“neither the booking photographs nor the pre-screening
booking form discredits or ‘completely contradicts'
Plaintiff's allegations of excessive force, as the
videotape evidence did in Scott.” Doc. #76, p.
10.

The
magistrate judge concluded that determining whether defendant
Bowein acted reasonably does not depend on the presence or
absence of physical injury.[4] Rather, under Graham,
the focus is on the crime committed and the arrestee's
behavior. The magistrate judge emphasized that defendant did
not assert that plaintiff posed an immediate threat to the
safety of the officers or others, and she also did not
dispute plaintiff's claim that he had not tried to evade
arrest or flee the scene. Therefore, the magistrate judge
determined, material questions of fact exist as to whether
defendant Bowein's alleged conduct --which included
slamming plaintiff against the police car and hitting his
head on the door frame -- was unreasonable “in relation
to the threat that [plaintiff] presented and the surrounding
circumstances.”[5]Cortez v. v. McCauley, 478 F.3d
1108, 1131 (10th Cir.2007) (en banc).

In her
objection, defendant Bowein challenges the magistrate
judge's conclusion that a fact question exists as to
whether she used excessive force, essentially because
plaintiff offers no evidence that he sustained any physical
injuries. See e.g., Doc. #78, p. 5 (“[I]t does
not take a doctor to look at a photograph and determine the
subject has no bruises.”). She asserts that summary
judgment is warranted under Graham because the Court
stated there that “[n]ot every push or shove, even if
it may later seem unnecessary in the peace of a judge's
chambers, violates the Fourth Amendment.”
Graham, 490 U.S. at 396 (internal quotation marks
omitted). It is implausible, defendant argues, that she
“used excessive force by slamming [plaintiff] into the
police car, but did so ‘gently' enough not to cause
bruising.” Doc. #78, p. 5.

Plaintiff
did produce evidence of a busted lip several hours after he
was arrested.[6]However, as it is not obvious in the
booking photographs, it may have occurred, as defendant
asserts, either after plaintiff arrived at the jail or was
such a minor injury that it is not discernable in the booking
photos. See Doc. #66-5. It does not matter, though,
because the Tenth Circuit recently rejected the premise of
defendant's argument in United States v.
Rodella, 804 F.3d 1317 (10th Cir. 2015). In
Rodella the court concluded that there is not even a
“de minimis injury requirement for Fourth Amendment
excessive force claims in cases which involve more than
handcuffing.” Id. at 1329. The Tenth Circuit
had previously recognized that “[t]he interests
protected by the Fourth Amendment are not confined to the
right to be secure against physical harm; they include
liberty, property, and privacy interests-a person's sense
of security and individual dignity.” Cortez,
478 F.3d at 1125-26 (10th Cir. 2007) (quoting Holland ex
rel. Overdorff v. Harrington, 268 F.3d 1179, 1196 (10th
Cir. 2001)).

Defendant
attempts to distinguish noninjury, excessive force cases,
asserting that they “typically involve a different type
of force, such as holding an individual at gunpoint.”
Doc. #78, p. 6. She relies on the statement in
Cortez, 478 F.3d at 1108, that “the absence of
injury in the context of the totality of the circumstances
may suggest the absence of excessive force.”
Id. at 1129 n.24. However, while, as defendant
argues, the absence of injury may “strongly suggest the
force used was reasonable, ” Doc. #78, p. 6, it does
not conclusively establish that defendant did not violate
plaintiff's Fourth Amendment rights under the
circumstances of this case. A reasonable jury could conclude
that an officer who, when arresting an individual for public
drunkenness, a nonviolent offense, repeatedly slams him
against a police vehicle and shoves his face against the door
trim, uses excessive force to effect the arrest when the
arrestee is neither resisting arrest nor threatening anyone.
See generally Cortez, 478 F.3d at 1130-31
(officers used excessive force when they “escort[ed]
[plaintiff] from her bedroom in the middle of the night and
[kept] her in a locked patrol car for nearly an hour”).

While
there is ample evidence in the record from which a jury might
determine that defendant did not violate plaintiff's
rights, that conclusion cannot be reached on summary
judgment. The court agrees with the analysis of the
magistrate judge that disputed material questions of fact
exist as to what happened during plaintiff's arrest,
which preclude summary judgment on plaintiff's excessive
force claim.[7] The court therefore adopts Magistrate
Judge Erwin's Report and Recommendation and denies
defendant Bowein's motion for summary judgment based on
qualified immunity.

IT
IS SO ORDERED.

---------

Notes:

[1] Defendant Baisden filed a separate
motion for summary judgment, which is still under
consideration by the ...

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